Court Bars City 'Set-Aside' Policy Based on Race: Set Stringent Test for Discrimination Remedies

Washington--The U.S. Supreme Court voted 6 to 3 last week to limit
the ability of school districts and state and local governments to
require that minority-owned businesses receive a set percentage of
their construction contracts.

Also in its Jan. 23 decision striking down a Richmond, Va.,
public-works policy, a majority of the Court's members agreed for the
first time to hold state and local rules that give minority groups
preferential treatment over whites to the same standard of "strict
scrutiny" used to judge policies that favor whites over minorities.

Legal experts differed last week on the ramifications of the
decision for public schools. While most agreed that the ruling in City
of Richmond v. J.A. Croson Company (Case No. 87-998) will directly
affect contract "set asides" for minority-owned businesses, there was
less consensus on its probable effects on racially motivated hiring,
transfer, and promotion policies.

The Court's holding on the strict-scrutiny issue is significant
because in prior affirmative-action cases, the Justices were unable to
agree whether programs benefiting racial minorities should be judged
under a less-stringent "intermediate" standard, or under the harsher
rule used to strike down laws that mandated segregation.

Under the Court's ruling in Richmond, governments now will have to
demonstrate that an affirmative-action policy is required to achieve a
compelling interest, and that the policy is "narrowly tailored" to
preserve the rights of whites to the greatest extent possible.

Many legal observers said last week that the ruling casts doubt on a
wide variety of affirmative-action programs because the Court has
upheld only one governmental policy that treated members of one race
differently than others after viewing it through the lens of strict
scrutiny. That was in 1943, when the Court approved the forced
relocation of Japanese Americans during World War II.

'Smoke Out' Discrimination

"[T]he purpose of strict scrutiny is to 'smoke out' illegitimate
uses of race by assuring that the legislative body is pursuing a goal
important enough to warrant use of a highly suspect tool," wrote
Associate Justice Sandra Day O'Connor in a portion of her opinion that
was joined only by Chief Justice William H. Rehnquist and Associate
Justices Byron H. White and Anthony M. Kennedy.

"The test also ensures that the means chosen 'fit' this compelling
goal so closely that there is little or no possibility that the motive
for the classification was illegitimate racial prejudice or
stereotype," she added.

In a separate concurring opinion, Justice Kennedy agreed with "the
proposition that any racial preference must face the most rigorous
scrutiny by the courts."

"The moral imperative of racial neutrality is the driving force" of
the 14th Amendment's equal-protection clause, he wrote.

Associate Justice Antonin Scalia went even further in an opinion
that no other Justices joined, saying that states may adopt
race-conscious remedies for discrimination only when it "is necessary
to eliminate their own maintenance of a system of unlawful racial
classification." The other members of the majority agreed that states
also could take such steps to address discrimination in the private
sector.

Although Associate Justice John Paul Stevens provided a sixth vote
to strike down the Richmond set-aside program, he wrote a separate
opinion disagreeing with the majority's stance "that a governmental
decision that rests on a racial classification is never permissible
except as a remedy for a past wrong."

In 1986, Justice Stevens dissented from the Court's decision to
strike down a program that gave preferential treatment to black
teachers in Jackson, Mich., when layoffs were required.

In that case, he wrote last week, "I thought it quite obvious that
the school board had reasonably concluded that an integrated
faculty4could provide educational benefits to the entire student body
that could not be provided by an all-white or nearly all-white
faculty."

"As I pointed out in my dissent in that case," he continued, "even
if we completely disregard our history of racial injustice, race is not
always irrelevant to sound governmental decisionmaking."

Marshall's Dissent

Associate Justice Thurgood Marshall echoed that theme in a dissent
joined by Justices William J. Brennan Jr. and Harry A. Blackmun.

"In concluding that remedial classifications warrant no different
standard of review under the Constitution than the most brute and
repugnant forms of state-sponsored racism, a majority of this Court
signals that it regards racial discrimination largely as a phenomenon
of the past, and that government bodies need no longer preoccupy
themselves with rectifying racial injustice," Justice Marshall
wrote.

"In constitutionalizing its wishful thinking," the Justice wrote,
''the majority today does a grave disservice ... to those victims of
past and present racial discrimination."

According to Justice Marshall, the city of Richmond "has witnessed
decades of publicly sanctioned racial discrimination in virtually all
walks of life."

"The majority today sounds a full-scale retreat from the Court's
longstanding solicitude to race-conscious remedial efforts," he
concluded. "The new and restrictive tests it applies scuttle one city's
effort to surmount its discriminatory past, and imperils those of
dozens more localities."

Effects on Set-Asides

School-law experts interviewed last week predicted that the effect
of the Court's ruling on public schools would be most pronounced in the
area of contract set-asides. (See related story on page 1.)

In her majority opinion, Justice O'Connor listed several reasons why
the Richmond plan failed to satisfy the two-pronged strict-scrutiny
test.

First, she said, city officials did not demonstrate there was a
compelling interest for the policy's adoption because they failed to
prove there was a history of discrimination in Richmond in the awarding
of city contracts.

"[A]n amorphous claim that there has been past discrimination in a
particular industry cannot justify the use of an unyielding racial
quota," she wrote. "Racial classifications are suspect, and that means
that simple legislative assurances of good intentions cannot
suffice."

Second, Justice O'Connor continued, "it is almost impossible to
assess whether the Richmond plan is narrowly tailored to remedy prior
discrimination since it was not8linked to identified discrimination in
any way."

In addition, she noted, "there does not appear to have been any
consideration of race-neutral means" to increase minority business
participation in city contracting. Such methods, the Justice said,
might include "simplification of bidding procedures, relaxation of
bonding requirements, and training and financial aid for disadvantaged
entrepreneurs of all races."

Effects on Employment Unclear

Education-law specialists said the Richmond decision's implications
for school district affirmative-action policies involving employment
are less certain. Most agreed that the situation would not be fully
resolved until a new education-specific case or set of cases works its
way through the courts.

According to one line of reasoning, the rationale that the High
Court's majority applied to the contract set-aside issue applies
equally well in the realm of employment.

In other words, before a district can practice affirmative action in
hiring, transfers, or promotions, it must first prove that minority
teachers have been discriminated against. In addition, the district
must consider and exhaust all race-neutral options available to it
before it can seek approval for a quota system.

Other experts noted, however, that it appears that at least four
members of the Court and perhaps a fifth would vote to support the
argument that the educational benefit of an integrated faculty is a
sufficiently "compelling interest" to justify affirmative action in the
absence of a history of discrimination.

According to these experts, Justices Marshall, Brennan, Blackmun,
and Stevens adopted this stance in the 1986 teacher-layoff case, Wygant
v. Jackson Board of Education, and Justice Stevens restated it in his
concurring opinion in Richmond.

In addition, they pointed out, Justice O'Connor indicated in a
footnote in her concurring opinion in Wygant that she would at least be
willing to consider that argument.

The experts said it was also unclear how the Richmond ruling might
affect lower-court orders or voluntary programs, arising in
school-desegregation cases, that apportion teachers, students, or
resources on the basis of race. (See related story, page 1.)

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